Weiguo Cheng v. Eric Holder, Jr. , 481 F. App'x 332 ( 2012 )

FILED
NOT FOR PUBLICATION AUG 15 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
WEIGUO CHENG, No. 10-72207
Petitioner, Agency No. A099-901-064
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 8, 2012 **
Before: ALARCÓN, BERZON, and IKUTA, Circuit Judges.
Weiguo Cheng, a native and citizen of China, petitions for review of the
Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an
immigration judge’s (“IJ”) decision denying his application for asylum,
withholding of removal, and relief under the Convention Against Torture (“CAT”).
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial
evidence the agency’s factual findings, applying the new standards governing
adverse credibility determinations created by the Real ID Act. Shrestha v. Holder,
590 F.3d 1034, 1039 (9th Cir. 2010). We deny in part and dismiss in part the
petition for review.
Substantial evidence supports the BIA’s adverse credibility determination
based on inconsistencies in Cheng’s testimony and written statement regarding the
timing and duration of the period Cheng and his wife hid before the alleged
abortion, and based on the inconsistency between his account of the alleged harm
and the civil mediation writ document. See id. at 1046-47 (“Although
inconsistencies no longer need to go to the heart of the petitioner’s claim, when an
inconsistency is at the heart of the claim it doubtless is of great weight.”). In the
absence of credible testimony, Cheng’s asylum and withholding of removal claims
fail. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003). We do not reach
Cheng’s arguments regarding the merits of his claims or the applicability of Matter
of J-S-, 24 I. & N. Dec. 520 (BIA 2008), because the credibility finding is
dispositive. See Farah, 348 F.3d at 1156.
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Because Cheng’s CAT claim is based on the same testimony the BIA found
not credible, and because the country condition evidence in the record does not
establish that it is more likely than not he will be tortured if returned to China, his
CAT claim also fails. See Almaghzar v. Gonzales, 457 F.3d 915, 922-23 (9th Cir.
2006).
Finally, we lack jurisdiction to review Cheng’s claim that the IJ exhibited
bias against him because he failed to exhaust that issue before the BIA. See
Sanchez-Cruz v. INS, 255 F.3d 775, 779-80 (9th Cir. 2001).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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